On The Construction Of Civil Incidental Appealing System In China

Incidental appeal system prevails in appealing proceedings in civil law,such as Germany,France,Japan and Taiwan region,on the system of civil procedure provisions.Although having specific differences,in practice it serves the protection of the parties' civil litigation equal status and controls of abuse lawsuits,improving the efficiency of judicial functions.At present,the civil appellate system of our country has many flaws,resulting in unequal status in litigations between the parties,legal delays,inefficiencies,and many other issues.Lack of incidental appeal system is undoubtedly the major cause.After several decades of reform and opening up,the planned economy has turned into the market economy in our country.In order to meet the needs of this society in transition,modes from the mode of super powers in civil procedure and slowly transition to adversary model,the parties' status is becoming more and more of attention to them.Litigation fairness has been permeated through the people,and requirements calling for justice and equality in the litigation process are increasingly strong.Incidental appeal system is established in the second trial,which is a program of relief and the balance of technical system.In pursuit of equal rights of parties at the same time,it expressed concern about efficiency.The value is primarily protecting the party who has lost the right to appeal by missing the time limit of the litigation rights,so that it can attach an appeal to the appellant's appeal,so that the non-appealing party would be able to request changing or neglecting undesirable parts and expanding beneficial parts in the first-round trial.Incidental appeal grants the party who lost its appealing rights with equal procedural rights and fight on an equal footing in the appealing procedure raised by the other party.This realizes the equality in the offensive and defensive position of the parties in second-instance procedures,so that they are able to timely and effectively exercise of the right.It makes more complete understandings of the parties' disputes and improves the accuracy of the appealing court to find facts and applicable law.One-time settlement of civil disputes,reduce unnecessary appeals and complaints,so as to effectively address the rate of appeals in civil cases in China in recent years and the drawbacks of retrial rates.In short,the system serves as a way to protect the legitimate rights and interests of two parties on an equal footing,promoting the one-time settlement of disputes,improving the efficiency of the judicial system,and should be introduced into our civil procedure legislation.Lifting the incidental appeal must be legitimate so that the party could file with the appeals by appellant to this.This is determined by the dependency of the incidental appeal.Main appeal does not exist;incidental appeal will also lose its effectiveness.When the primary appeal was dismissed for being illegal,in this case,the incidental appeal will naturally fail.If the appellant withdraw an appeal,the incidental appeal will naturally lose their validity because there is no legitimate existence.Pay special attention that if the withdrawal of appeal by the appellant is later than the incidental appeal,a successful withdrawal would require the acceptance of the incidental appellant.The appellant and included with the course of his rights and obligations under the right to bring an appeal,neither does have an independent right to request a third person could lift the incidental appeal.Only against the third party without independent claim and requirements according to the law of the Court of first instance shall bear civil liability cases,he has the right to lift the incidental appeal.Common joint litigants are brought within the scope of their litigation right of incidental appeal.When necessary joint action,and only through joint action the other person acknowledges that brought together can be seen as a common litigation incidental appeal.The party that withdrew its incidental appeal can no longer file any appeal.Incidental appeal system only applies to the decision,and is the first instance judgment.It does not apply to convict.Some judgments,incidental to limit the scope of the appeal the appellant filed an appeal of the judgment in the first instance,for the first instance of "incidental referees”,included with the incidental appellant on the judgment of the magistrate's statement against,lift the incidental appeal.In addition,prohibition of incidental appeals with the appeal.The period for incidental appeal is after the expiration of the appeal period and before the end of the debate.Appellant who lift the incidental appeal should have the benefit of appeal.Incidental appeals are filed in written form principally,and in oral form as an exception.